[EL] question about Pennsylvania official election returns

Mon Dec 14 14:23:42 PST 2020

The case is moot, I think.

Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com

On Mon, Dec 14, 2020 at 2:18 PM Paul Lehto <lehto.paul at gmail.com> wrote:

> Justice Alito's November 6 order, reprinted below, specifically recites
> that these ballots either not be counted or be counted separately.  This
> order came after the Pennsylvania Republican Party requested it, in part,
> to "preserve jurisdiction." Because the issue of whether these ballots
> should be included or not in the totals is unsettled or undecided, this
> case does not appear to be moot. In addition, prior language in a
> pre-election opinion in the case suggested that this Electors Clause issue
> was an important one deserving of an opinion, so mootness could also be
> avoided for that reason. This may well help to explain the shift in Trump
> litigation toward Electors Clause claims in recent weeks.
>
> With responsive briefs filed on November 30, (after an extension of time
> granted to harmonize the briefing deadline with the Scarnati companion case
> from Pennsylvania), it appears likely this case will result in a decision
> and perhaps an opinion.  If there is an opinion on the Electors Clause it
> would not directly decide the election like the Texas case might have, but
> depending on the wording of the possible opinion on the Electors Clause it
> might still inspire state legislative action now or in a future election.
> The Court may well prefer to rule on the Electors Clause using this
> particular vehicle in order to avoid spending too much political capital by
> deciding the presidency directly as invited to by Texas v. Pennsylvania.
>
> The timing of such an opinion is critical.  The court, after previously
> denying two motions to expedite, nevertheless expressed a willingness to
> expedite after the election given reason to do so.  Thus, conceivably there
> could be an opinion prior to January 6. Is there a serious Court watcher
> that has better knowledge of the possibilities here?
>
> But no matter when such an Opinion on the Electors Clause comes down, if
> that opinion contains the language that state legislatures, acting with
> reference to presidential elections, are not bound by their state
> constitution and may not be "interfered" with or modified by other branches
> including the state courts, but rather are constrained only by Congress and
> the federal Constitution, that would be a legal revolution in election law,
> in my opinion, even if it occurs later in 2021.
>
> Paul Lehto, J.D.
>
> Nov 06 2020 Order issued by Justice Alito: All county boards of election
> are hereby ordered, pending further order of the Court, to comply with the
> following guidance provided by the Secretary of the Commonwealth on October
> 28 and November 1, namely, (1) that all ballots received by mail after 8:00
> p.m. on November 3 be segregated and kept “in a secure, safe and sealed
> container separate from other voted ballots,” and (2)* that all such
> ballots, if counted, be counted separately. *Pa. Dep’t of State,
> Pennsylvania Guidance for Mail-in and Absentee Ballots Received From the
> United States Postal Service After 8:00 p.m. on Tuesday, November 3, 2020
> (Oct. 28, 2020); Pa. Dep’t of State, Canvassing Segregated Mail-in and
> Civilian Absentee Ballots Received by Mail After 8:00 p.m. on Tuesday,
> November 3, 2020 and Before 5:00 p.m. on Friday, November 6, 2020 (Nov. 1,
> 2020). Until today, this Court was not informed that the guidance issued on
> October 28, which had an important bearing on the question whether to order
> special treatment of the ballots in question, had been modified. The
> application received today also informs the Court that neither the
> applicant nor the Secretary has been able to verify that all boards are
> complying with the Secretary’s guidance, which, it is alleged, is not
> legally binding on them. I am immediately referring this application to the
> Conference and direct that any response be filed as soon as possible but in
> any event no later than 2 p.m. tomorrow, November 7, 2020.
>
> On Mon, Dec 14, 2020 at 1:52 PM <sean at impactpolicymanagement.com> wrote:
>
>> The Certificate of Ascertainment probably wouldn’t have that sort of
>> information (though states have wide latitude in the format and information
>> included on the document, some states literally don’t even list which
>> presidential candidate is associated with the winning – or any other –
>> slate of electors). But my assumption would be that it does not include
>> those ballots, as the litigation surrounding them is still ongoing.
>> SCOTUSblog has a (hopefully accurate) chronology
>> <https://www.scotusblog.com/case-files/cases/republican-party-of-pennsylvania-v-boockvar-2/>
>> of the case, in which the most recent action was a filing by Secretary of
>> State Boockvar on November 30. So those ballots are likely still segregated
>> and uncounted, and if eventually ruled to be legal ballots will be included
>> in some sort of amended certified results (though the Certificate of
>> Ascertainment will not be amended, of course).
>>
>>
>>
>> Sean Parnell
>>
>>
>>
>> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
>> Behalf Of *John Koza
>> *Sent:* Monday, December 14, 2020 3:42 PM
>> *To:* 'Richard Winger' <richardwinger at yahoo.com>; law-election at uci.edu
>> *Cc:* 'Adam Yake' <ayake at pa.gov>
>> *Subject:* Re: [EL] question about Pennsylvania official election returns
>>
>>
>>
>> Pennsylvania has a Certificate of Ascertainment at the National Archives
>> web site dated November 24 at
>>
>>
>> https://www.archives.gov/files/electoral-college/2020/ascertainment-pennsylvania.pdf
>>   However, it doesn’t say whether it includes the mail ballots arriving in
>> the 3 days after Election Day.
>>
>>
>>
>> Dr. John R. Koza
>>
>> Box 1441
>>
>> Los Altos Hills, California 94023 USA
>>
>> Phone: 650-941-0336
>>
>> Email: john at johnkoza.com
>>
>> URL: www.johnkoza.com
>>
>> URL: www.NationalPopularVote.com <http://www.nationalpopularvote.com/>
>>
>>
>>
>> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
>> Behalf Of *Richard Winger
>> *Sent:* Monday, December 14, 2020 12:03 PM
>> *To:* law-election at uci.edu
>> *Cc:* Adam Yake <ayake at pa.gov>
>> *Subject:* [EL] question about Pennsylvania official election returns
>>
>>
>>
>> I now have the official election returns for every state except
>> Pennsylvania.  If one goes to http://www.electionreturns.pa.gov, one
>> sees Nov 2020 election returns but the page says, "These vote totals do not
>> include any votes from mail ballots received between 8 pm on election day
>> and 5 pm the following Friday."
>>
>>
>>
>> I tried phoning the Pa. Dept. of State, but after waiting on hold for 30
>> minutes, a computer voice said it was impossible to reach a human being,
>> and let me leave a voice mail, and hung up.
>>
>>
>>
>> Does anyone know how to get the final Pa. results, or know where they can
>> be found?  Perhaps they don't exist yet.
>>
>>
>>
>> Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
>> _______________________________________________
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>> Law-election at department-lists.uci.edu
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>
>
>
> --
> Paul R Lehto, J.D.
> 1105 Sunset Blvd NE
> Renton, WA 98056
> lehto.paul at gmail.com
> 906-204-4965 (cell)
>
>
>
>
>
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